Smart Meters and the Fourth Amendment
Overview The use of smart meters presents the recurring conflict between law enforcement's need to effectively investigate and combat crime and our desire for privacy while in our homes. With smart meters, police will have access to data that might be used to track residents' daily lives and routines while in their homes, including their eating, sleeping, and showering habits, what appliances they use and when, and whether they prefer the television to the treadmill, among a host of other details.Jack I. Lerner & Deirdre K. Mulligan, "Taking the 'Long View' on the Fourth Amendment: Stored Records and the Sanctity of the Home," 2008 Stanford Tech. L. Rev. 3, ¶3 (2008). Though a potential boon to police, access to this data is not limitless. The Fourth Amendment, which establishes the constitutional parameters for government investigations, may restrict access to smart meter data or establish rules by which it can be obtained. The Fourth Amendment ensures that the This article discusses whether the collection and use of smart meter data may contravene this protection. Although there is no Fourth Amendment case on point, analogous cases may provide guidance.For additional analyses of smart meters under the Fourth Amendment, see Cheryl Dancey Balough, "Privacy Implications of Smart Meters," 86 Chi.-Kent L. Rev. 161 (2011); see also Smart Metering & Privacy: Existing Law and Competing Policies, at 28 (“Interval data of electricity consumption appears to be in something of a no-man's-land under Supreme Court Fourth Amendment jurisprudence.”). To assess whether there has been a Fourth Amendment violation, two primary questions must be asked: (1) whether there was state action; that is, was there sufficient government involvement in the alleged wrongdoing to trigger the Fourth Amendment; and (2) whether the person had an expectation of privacy that society is prepared to deem reasonable.California v. Ciraolo, 476 U.S. 207, 211 (1986) (citing Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring)) (full-text). If the first question is answered in the affirmative, then the analysis moves to the second question. But if no state action is found, the analysis ends there and the Fourth Amendment does not apply. This article will first determine whether access to smart meter data by police, or by privately and publicly owned utilities, satisfies the state action doctrine, thereby warranting further Fourth Amendment review. State action: Privately versus publicly owned utilities Most of the safeguards for civil liberties and individual rights contained in the U.S. Constitution apply only to actions by state and federal governments.Civil Rights Cases, 109 U.S. 3, 11 (1883) (full-text) ("It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the Fourteenth amendment."); see John E. Nowak & Ronald D. Rotunda, Constitutional Law §12.1(a)(i) (8th ed. 2010). This rule, known as the state action doctrine, arises when a victim claims his constitutional rights have been violated, and therefore must prove the wrongdoer had sufficient connections with the government to warrant a remedy.Id. Applying the state action test is intended to determine whether a utility's collection and dissemination of smart meter data is governed by the Fourth Amendment, and if so, to what extent. Although there are many variations in the governance and ownership of utilities — some are privately owned, others publicly owned, some federally operated, and still others nonprofit cooperatives — they generally fall into two broad categories: public and private.Determining whether a private actor is sufficiently "public" is not clear-cut. Then Justice Rehnquist noted, "the true nature of the State's involvement may not be immediately obvious, and detailed inquiry may be required in order to determine whether the test is met." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974) (full-text). This section will analyze the constitutional differences between privately and publicly owned utilities under the state action doctrine and a public records theory. Privately owned and operated utilities It is broadly said that the Fourth Amendment applies only to acts by the government.Burdeau v. McDowell, 256 U.S. 465, 475 (1921) (full-text). But there are at least two exceptions to this rule. First, if a utility performs a function traditionally exercised by the government, it may be considered a state actor under the public function exception. Second, the Fourth Amendment may apply when a private utility acts as an instrument or agent of the police.See United States v. Jacobsen, 466 U.S. 109, 113 (1984) (full-text). Under the public function exception, a nominally private entity is treated as a state actor when it assumes a role traditionally played by the government.Marsh v. Alabama, 326 U.S. 501 (1946) (full-text) (holding that privately owned property was equivalent to "community shopping center" thus private party was subject to the First and Fourteenth Amendments). Determining when this exception applies has not proved easy,See Nowak & Rotunda §12.2. but it is reasonably clear that private utilities do not, in most instances, satisfy it. In Jackson v. Metropolitan Edison Co.,''419 U.S. 345, 347 (1974). a customer sued a privately owned utility under the Civil Rights Act of 1871 for improperly shutting off her service without providing her notice or a hearing.''See also Mays v. Buckeye Rural Elec. Coop., Inc., 277 F.3d 873, 880-81 (6th Cir. 2002) (full-text) (holding that nonprofit cooperative utility was not a state actor under the federal constitution); Spickler v. Lee, 2003 U.S. App. LEXIS 6227, at *2 (1st Cir. Mar. 31, 2003) (holding that private electric utility company was not a state actor). The Supreme Court asked whether there was a close enough nexus between the state and the utility for the acts of the latter to be treated as those of the former.Jackson, 419 U.S. at 351. Although the utility was heavily regulated by the state, it was held not to be a state actor.Id. at 358-59. The Court reasoned that the provision of utility service is not generally an "exclusive prerogative of the State."Id. at 353. Also absent was the symbiotic relationship between the utility and the state found in previous cases.Id. at 357. Though its holding was broad, the Court did not foreclose the possibility that a privately owned utility could be a state actor under different circumstances.Id. at 351. This possibility, however, appears narrow. The Fourth Amendment may also apply to a private utility if its acts were directed by the government. Generally, searches performed by private actors without police participation or encouragement are not governed by the Fourth Amendment.1 Wayne R. LaFave, Search and Seizure §1.8, at 255 (4th ed. 2004). A search by a private insurance investigator, for instance, was not a "search" in the constitutional sense, though the evidence was ultimately used by the government at trial.United States v. Howard, 752 F.2d 220, 227-28 (6th Cir. 1985) (full-text). This result differs, however, if there is sufficient government involvement. If the search has been ordered or requested by the government the private actor will become an "instrument or agent of the state" and must abide by Fourth Amendment strictures.Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971) (full-text) (internal quotation marks omitted); see LaFave, §1.8(b). For example, the Fourth Amendment does not apply when a telephone company installs a pen register on its own initiative.United States v. Manning, 542 F.2d 685, 686 (6th Cir. 1976) (full-text). The same action constitutes a search, however, if requested by the government.People v. Hayes, 82 Mich. App. 253, 258, 266 N.W.2d 778 (1978) (full-text). This theory applies not only to direct instigation, but also on a broad, programmatic level. In the 1960s and 1970s the federal government required privately owned and operated airlines to institute new security measures to combat airline hijacking. In ''United States v. Davis,''482 F.2d 893, 897-903 (9th Cir. 1973) (full-text). the airline searched a passenger based on these requirements and found a loaded gun.''Id. at 895. The Ninth Circuit held that it made no difference whether the search was conducted by a private or public official: Thus, if a private party is required to perform a search or collect data under federal or state laws or regulations, there will be sufficient state action for the Fourth Amendment to apply. Or, put another way, the government cannot circumvent the Fourth Amendment by requiring a private party to initiate a search or implement an investigative program. This agency theory might apply to the collection of smart meter data. If the utility is accessing this information "independent of the government’s intent to collect evidence for use in a criminal prosecution,"United States v. Howard, 752 F.2d 220, 228 (6th Cir. 1985) (full-text). the utility will not be considered an agent of the government for Fourth Amendment purposes. But there might be instances when government instigation will trigger further analysis. If, for example, the government requested the utility to record larger quantities of data than was customary (e.g., increasing the intervals from sub-15 minute intervals to sub-five minute or sub-one minute intervals), this would likely warrant Fourth Amendment scrutiny. Also, if the police requested the utility to hand over customer data, say, for spikes in energy commensurate with a marijuana growing operation, this would likely be a sufficient instigation to trigger further constitutional review. Other situations may arise where the government establishes a dragnet-type law enforcement scheme in which all smart meter data is filtered through police computers. This could also implicate the agency theory and warrant a finding of state action. Publicly owned and operated utilities Although the Fourth Amendment (with its warrant and probable cause requirement) typically applies to public actors, in certain instances their collection of information may not fall under the Fourth Amendment or may prompt a lower evidentiary standard. The Supreme Court has infrequently considered the scope of the Fourth Amendment "on the conduct of government officials in noncriminal investigations,""The Supreme Court, 1986-Term—Leading Cases," 101 Harv. L. Rev. 119, 230 (1987). and even less frequently as to "noncriminal noninvestigatory governmental conduct."United States v. Attson, 900 F.2d 1427, 1430 (9th Cir. 1990) (full-text) (emphasis in original). Nonetheless, there are two lines of cases that may apply to smart meters in which the Fourth Amendment may not apply at all (noncriminal noninvestigatory conduct) or may be reduced (noncriminal investigations). The key to this analysis is the government’s purpose in collecting the data. The Supreme Court has developed a line of cases dubbed the "special needs" doctrine that permits the government to perform suspicionless searches if the special needs supporting the program outweigh the intrusion on the individual's privacy.Ferguson v. City of Charleston, 532 U.S. 67, 77-78 (2001) (full-text). Some circuit courts of appeal have extended the special needs theory, holding that the Fourth Amendment does not apply (in contrast to a reduced standard of suspicion as with the special needs cases) unless the "conduct has as its purpose the intention to elicit a benefit for the government in either its investigative or administrative capacities."See United States v. Attson, 900 F.2d 1427, 1431 (9th Cir. 1990) (full-text); Poe v. Leonard, 282 F.3d 123, 137 (2d Cir. 2002) (full-text); United States v. Elliot, 676 F.Supp.2d 431, 435-36 (D. Md. 2009) (full-text). In United States v. Attson,''900 F.2d 1427, 1431 (9th Cir. 1990) (full-text). the Ninth Circuit held that the collection of blood by a government-employed physician, which was subsequently used by the police in a drunk driving prosecution, was not within the scope of Fourth Amendment protection.''Id. at 1433. The panel reasoned that the doctor drew the blood for medical purposes, not to further a governmental purpose in obtaining evidence against the defendant in its criminal investigation, so the Fourth Amendment did not apply.Id. Applying these two theories to smart meters, a court would focus on the publicly owned utility's purpose in collecting the data. If it were for ordinary business purposes such as billing, informing the customer of its usage patterns, or aiding the utility in making the grid more energy-efficient, then it would not violate the Fourth Amendment. If, however, the public utility began aggregating data at the request of a law enforcement agency, with the purpose of aiding a criminal investigation or other administrative purpose, the Fourth Amendment would seemingly apply. As with private utilities, if the government requested that the public utility report any suspicious electricity usage, or created a program where certain data was regularly transmitted to the police, this might become investigatory and warrant Fourth Amendment protections. It appears law enforcement cannot evade Fourth Amendment restrictions by requesting a publicly owned utility to collect data for it. Law enforcement might also request smart meter data under a public records theory. It is generally accepted that public records are not accorded Fourth Amendment protection.See Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995) (full-text) (“Information readily available to the public is not protected by the constitutional right to privacy.”); Doe v. City of New York, 15 F.3d 264, 268 (2d Cir. 1994) (full-text) (“Certainly, there is no question that an individual cannot expect to have a constitutionally protected privacy interest in matters of public record.”); United States v. Ellison, 462 F.3d 557, 562 (6th Cir. 2006) (full-text) (accessing license plate number from computer database held not an intrusion of a constitutionally protected area, thus not a Fourth Amendment “search”); United States v. Baxter, 492 F.2d 150, 167 (9th Cir. 1973) (full-text) (holding that Fourth Amendment protections do not extend to telephone company toll and billing records); see also Christopher Slobogin, "The Search and Seizure of Computers and Electronic Evidence: Transaction Surveillance by the Government," 75 Miss. L.J. 139, 156 (2005). Unless there is a state or federal statute prohibiting disclosure, "law enforcement access to state public records is unrestricted."Slobogin, supra. Thus the inquiry hinges on whether a document is a public record. Whether a person’s utility records are public records differs from state to state. Some states deem records of a municipally owned and operated electric utility as public records open for public inspection, while others have accorded these records statutory and constitutional protections. In Florida, for example, records kept in connection with the operation of a city-operated utility are considered public records.In re Public Records—Records of Municipally Operated Utility, Op. Att’y Gen. Fla. 74-35 (1974) (full-text); see Fla. Stat. §119.01(1) (2008) (“It is the policy of this state that all state, county, and municipal records are open for personal inspection by any person.”). A similar policy applies in Georgia, where all records of a government agency, including utility records, must be open for inspection.See Ga. Code Ann. §50-18-70(b) (2011); Op. Att’y Gen. Ga. 2000-4 (2000) (requiring personal utility records of certain public employees to be disclosed under public records law). Georgia defines a "public record" as "all documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, or similar material prepared and maintained or received in the course of the operation of a public office or agency." Ga. Code Ann. §50-18-70(a). South Carolina, too, takes a similar approach.In South Carolina, public records include "information in or taken from any account, voucher, or contract dealing with the receipt or expenditure of public or other funds by public bodies." S.C. Code Ann. §30-4-50 (2011). It is not clear, however, from the reported cases whether these statutes permit access to personally identifiable information or simply operating records of the utility. Oklahoma is more explicit, permitting access to "records of the address, rate paid for services, charges, consumption rates, adjustments to the bill, reasons for adjustment, the name of the person that authorized the adjustment, and payment for each customer."Okla. Stat., tit. 51, §24A.10 (2011). Oklahoma does protect some confidentiality, including "credit information, credit card numbers, telephone numbers, social security numbers, and bank account information for individual customers."Id. Other states, like Washington, specifically protect personally identifiable utility records. Washington does not require a showing of probable cause, but instead "a reasonable belief" that the record will help establish the customer committed a crime.Wash. Rev. Code §42.56.335 (2011). In Washington, the following rule applies to public utility districts and municipally owned electrical utilities: Wash. Rev. Code §42.56.335. The Washington Supreme Court has raised this protection to state constitutional status in In re Personal Restraint of Maxfield, 133 Wash. 2d 332, 344, 945 P. 2d 196 (1997) (full-text). North Carolina likewise states that any "billing information compiled and maintained by a city or county or other public entity providing utility services in connection with the ownership or operation of a public enterprise" is not a public record.However, the North Carolina public records law declares that "nothing contained herein is intended to limit public disclosure by a city or county of bill information: . . . that is necessary to assist law enforcement, public safety, fire protection, rescue, emergency management, or judicial officers in the performance of their duties." N.C. Gen. Stat. §132-1.1©(3). Determining whether a utility is a state actor or whether smart meter data is a public record are merely threshold matters. A finding that an entity is a state actor or data is public does not foreclose law enforcement's ability to retrieve customer smart meter data, but instead activates the next step of Fourth Amendment analysis: whether the government invaded a reasonable expectation of privacy. Reasonable expectation of privacy in smart meter data Under the modern conception of the Fourth Amendment, the government may not intrude into an area in which a person has an actual expectation of privacy that society would consider reasonable.Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (full-text) . In the case of smart meter data, the government presumably seeks records in the custody of third-party utilities on the energy use at a specific home. However, a significant body of cases has refused to recognize constitutionally protected privacy interests in information provided by customers to businesses as part of their commercial relationships.See Smith v. Maryland, 442 U.S. 735 (1979) (full-text). This theory, the third-party doctrine, permits police access to the telephone numbers a person dials''Id.'' and to a person's bank documents,United States v. Miller, 425 U.S. 435 (1976) (full-text). free from Fourth Amendment constraints. There are two relevant differences, however, between smart meters and the traditional third-party cases that may warrant a shift in approach. First is the possible judicial unease with the notion that advancement of technology threatens to erode further the constitutional protection of privacy.Kyllo v. United States, 533 U.S. 27, 33-34 (2001) (full-text) ("It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology."). From that perspective, as technology progresses, society faces an ever-increasing risk that an individual's activities will be monitored by the government. This is coupled with the concern that the breadth and granularity of personal information that new technology affords provide a far more intimate picture of an individual than the more limited snapshots available through prior technologies. Do the richness and scope of new information technologies warrant increased constitutional scrutiny? Second, smart meters can convey information about the activities that occur inside the home, an area singled out for specific textual protection in the Fourth Amendment and one deeply ingrained in Anglo-Saxon law.See Entick v. Carrington, 19 How. St. Tr. 1029 (C.P. 1765). Even when the Court declared that "the Fourth Amendment protects people, not places,"Katz v. United States, 389 U.S. 347, 351 (1967) (full-text) . ostensibly shifting away from a property-based conception of the Fourth Amendment, it has still carved out special protections for the home.See Orin S. Kerr, "The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution," 102 Mich. L. Rev. 801, 809-10 (2004) (hereinafter Kerr, "Fourth Amendment and New Technologies"). However, concomitant with the increased use of technology in our private lives is increased exposure of our private activities, including those conducted in the home. Commonly, we share more personal information, even as our concerns grow that more individuals, businesses, and others can glean more information about our personal lives as a matter of course. As with technology generally, does the fact that more of our lives are becoming "public" call for lesser or greater constitutional protection, and how does a "reasonable expectation"-based model continue to apply in a technologically intensive society? This section will first look at the third-party doctrine as it is commonly conceived by the courts. Then it will discuss whether there are sufficient differences between the use of smart meters and traditional third-party cases to counsel against its application. Third-party doctrine Traditionally, there has been no Fourth Amendment protection for information a consumer gives to business as part of their business dealings.Orin S. Kerr, "The Case for a Third-Party Doctrine," 107 Mich. L. Rev. 561, 563 (2009). While the third-party doctrine has supporters like Professor Kerr, this group is overshadowed by its vocal detractors. Professor LaFave described its underpinnings as "dead wrong" and that the "Court's woefully inadequate reasoning does great violence to the theory of Fourth Amendment protection which the Court developed in Katz v. U.S., 1 Wayne R. Lafave, Search and Seizure §2.7© (4th ed. 2004). Justice Sotomayor lent credence to this sentiment in United States v. Jones, 565 U.S. ___, 132 S.Ct. 945 (Jan. 23, 2012) (full-text) (Sotomayor, J., concurring in the judgment and the opinion) where she posited that it "may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." This doctrine dates back to the secret agent cases, in which any words uttered to another person, including a government agent or informant, were not covered by the Fourth Amendment.United States v. White, 401 U.S. 745, 750 (1971) (full-text) (holding that the Fourth Amendment "affords no protection to a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.") (internal quotation marks omitted). It was later extended to business records, giving police access to documents such as telephone records,Smith v. Maryland, 442 U.S. 735 (1979) (full-text). bank records,United States v. Miller, 425 U.S. 435 (1976) (full-text). motel registration records,United States v. Willis, 759 F.2d 1486, 1498 (11th Cir. 1985) (full-text). and cell phone records.United States v. Hynson, No. 05-576, 2007 WL 2692327, at *6 (E.D. Pa. Sept. 11, 2007). The U.S. Supreme Court has reasoned that the customers assume the risk that the information could be handed over to government authorities,Smith v. Maryland, 442 U.S. 735, 744 (1979) (full-text). and also that they consent to such access.Kerr, Third-Party Doctrine, supra. Some lower courts have applied this theory to traditional analog utility meters.United States v. McIntyre, 646 F.3d 1107 (8th Cir. 2011) (full-text). This section discusses the possible application of the third-party doctrine to smart meters. In Miller v. United States,''425 U.S. 435, 437-38 (1976) (full-text). agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) subpoenaed several banks for record's pertaining to the defendant, including copies of the defendant's checks, deposit slips, and financial statements. The defendant moved to suppress the records at trial, arguing that a warrantless retrieval of the bank records (his "private papers") was an intrusion into an area protected by the Fourth Amendment. The Court disagreed, broadly declaring "the Fourth Amendment does not prohibit the obtaining of information revealed to a third-party and conveyed by him to Government authorities, even if it is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third-party will not be betrayed."''Id. at 443. The Court further noted that "the depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government."Id. Three years later, the Court extended the third-party doctrine to outgoing numbers dialed from a person’s telephone.Smith v. Maryland, 442 U.S. 735 (1979) (full-text). In Smith v. Maryland, the defendant robbed a woman and began making obscene phone calls to her.Id. at 737. Suspecting Smith placed the calls, the police used a pen register to track the telephone numbers dialed from his phone.Id. The police failed to obtain a warrant or subpoena before installing the pen register.Id. The pen register revealed that Smith was in fact making the phone calls to the woman. In denying Smith's motion to suppress, the Court relied on the third-party doctrine, stating that "this Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."Id. at 743-44. As applied to the telephone context, the Court found that "when he used his phone, Smith voluntarily conveyed numerical information to the telephone company and 'exposed' that information to its equipment in the ordinary course of business. In so doing, Smith assumed the risk that the company would reveal to police the numbers he dialed."Id. at 744. Traditionally, utility records have been handled similarly to bank records and telephone records. Several lower federal courts have held that customers do not have a reasonable expectation of privacy in their utility records, thereby permitting warrantless access to these records. In United States v. Starkweather, the Ninth Circuit held that a person does not have a reasonable expectation of privacy in his utility records.1992 WL 204005, at *2 (9th Cir. Aug. 24, 1992). The panel reasoned that (1) these records were no different from phone records, and thus did not justify a different constitutional result; and (2) the public was aware that such records were regularly maintained, thereby negating any expectation of privacy.Id. The Eighth Circuit has also upheld warrantless police access to utility records in United States v. McIntyre.''646 F.3d 1107 (8th Cir. 2011) (full-text). The Eighth Circuit panel distinguished ''Kyllo v. United States, declaring that the means of obtaining the information in Kyllo (a thermal-imaging device) was significantly more intrusive than simply subpoenaing the records from the utility company.Id. at 1111. The court held that "the means to obtaining the information is legally significant."Id. Likewise, the court in United States v. Hamilton''434 F.Supp.2d 974, 980 (D. Or. 2006) (full-text). held that the means of obtaining power records from a third-party by way of administrative subpoena as opposed to "intrusion on the home by 'sense enhancing technology'" is "legally significant," removing this type of situation from the ''Kyllo-home privacy line of cases into the Miller-third-party line.See Booker v. Dominion Va. Power, 2010 U.S. Dist. LEXIS 44960, at *17 (E.D. Va. May 7, 2010); see also Samson v. State, 919 P.2d 171, 173 (Ala. App. 1996) (full-text) (holding under state constitution that "utility records are maintained by the utility and do not constitute information in which society is prepared to recognize a reasonable expectation of privacy"); People v. Stanley, 72 Cal.App.4th 1547, 86 Cal. Rptr. 2d 89, 94 (1999) (full-text) (same). It is difficult to predict whether a court would extend this traditional third-party analysis to smart meters. The courts may seek to ensure the predictability and stability of the third-party doctrine generally and administration of utility services specifically, thus requiring a bright-line rule for all third-party circumstances.See Duncan Kennedy, "Form and Substance in Private Law Adjudication," 89 Harv. L. Rev. 1687, 1710 (1976). There is an advantage to a rule that is easy to apply, that allows utilities to better govern their affairs, and does not permit "savvy wrongdoers to use third-party services in a tactical way to enshroud the entirety of their crimes in zones of Fourth Amendment protection."Orin S. Kerr, "The Case for a Third-Party Doctrine," 107 Mich. L. Rev. 561, 564 (2009) However, there are three overarching considerations embodied in the use of smart meters that might weigh against the application of traditional third-party analysis. These include (a) a person's expectation of privacy while at home; (b) the breadth and granularity of private information conveyed by smart meters; © the lack of a voluntary assumption of the risk or consent to release of this data. Privacy in the home The location of the search mattered little in the traditional third-party cases, but it may take on constitutional significance with smart meters.In Smith v. Maryland, 442 U.S. 735, 743 (1979) (full-text), the "site of the call was immaterial for purposes of analysis" of that case. Whether a person dials a telephone number from his home, a telephone booth, or any other location does not alter the nature of the activity, and thus does not affect the Fourth Amendment analysis. The privacy interests implicated are the same no matter where the call is placed. The same theory applies to bank records. It matters not where someone writes a check, or fills out a deposit slip — the privacy interest is the same. In the case of smart meters, the information is generated in the home, an area accorded specific textual protection in the Fourth Amendment, and one the Supreme Court has persistently safeguarded.Payton v. New York, 445 U.S. 573, 589 (full-text) ("The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home — a zone that finds its roots in clear and specific constitutional terms: 'The right of the people to be secure in their . . . houses . . . shall not be violated.'") (quoting U.S. Const. amend IV); Minnesota v. Carter, 525 U.S. 83, 99 (1998) (full-text) (Kennedy, J., concurring) ("It is beyond dispute that the home is entitled to special protection as the center of the private lives of our people. Security of the home must be guarded by law in a world where privacy is diminished by enhanced surveillance and sophisticated communication systems."). In no uncertain terms the Court has asserted that "at the very core the [[Fourth Amendment]] stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion."Silverman v. United States, 365 U.S. 505, 511 (1961) (full-text). Even as technology advances — whether a tracking or thermal-imaging device or something new — the Court has maintained this bulwark. Because of the significance of the home, access to smart meter data may prompt a doctrinal shift away from the third-party doctrine. Several home privacy cases shed light on this possible approach.In April 2012, the Supreme Court will hear oral arguments in its most recent home privacy case, Jardines v. Florida, 73 So.3d 34 (Fla. 2011) (full-text), cert. granted, 2012 U.S. Lexis 7 (Jan. 6, 2012), where it will decide whether a drug sniff at the front door of a suspect's house by a trained narcotics dog is a Fourth Amendment search requiring probable cause. This case should shed further light on the parameters of privacy surrounding the home. In Kyllo v. United States,''533 U.S. 27 (2001) (full-text). the Court had to decide whether the use of a thermal-imaging device from the outside of a home that detected the amount of heat coming from inside the home was a violation of the Fourth Amendment.''Id. at 29. In Kyllo, an agent of the Department of the Interior suspected Danny Kyllo was growing marijuana in his home with the use of high-intensity lamps. The agent used a thermal imager to scan the outside of Kyllo's apartment to determine if he was using these "grow" lamps.Id. Thermal imagers can detect energy emitting from the outside surface of an object. When scanning the home, the thermal imager produced an image with various shades of black, white, or gray — the shades darker or lighter depending on the warmth of the area being scanned.Id. at 29-30. From the passenger seat of his car, the agent scanned Kyllo's home for several minutes.'' Id.'' at 30. From his scan, he determined that the area over the garage and one side of his home were relatively hot compared to neighboring homes. Based on utility bills, informant tips, and the results of thermal imaging, the agents obtained a warrant to search Kyllo's home. As suspected, inside the home the agents found a marijuana growing operation, including over 100 plants.Id. The Ninth Circuit held that Kyllo had not exhibited a subjective expectation of privacy in the home because he did not attempt to prevent the heat emitting from the lamps from escaping his home. United States v. Kyllo, 190 F.3d 1041, 1046 (9th Cir. 1999) (full-text). Further, the panel held that even if he had a subjective expectation of privacy, it was not a reasonable one since the imager "did not expose any intimate details of Kyllo's life." Id. at 1047. Justice Scalia first posited that "with very few exceptions, the question whether a warrantless search of the home is reasonable must be answered no."Kyllo, 533 U.S. at 31. Searches of the home were historically analyzed under the common law doctrine of trespass,See Olmstead v. United States, 277 U.S. 438 (1928) (full-text). but during the mid-20th century the Court instead anchored the Fourth Amendment to a conception of privacy.Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (full-text). The modern formulation of the reasonable expectation of privacy test derives not from the majority opinion but from Justice Harlan's concurrence. While this test may be difficult to apply in the context of automobiles, telephone booths, or other public areas, it is made easier when concerning the home: The Court ultimately held that "obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search — at least where (as here) the technology in question is not in general public use."Id. (internal quotation marks omitted) Kyllo affirmed the notion that "an expectation of privacy in activities taking place inside the home is presumptively reasonable."Jack I. Lerner & Deirdre K. Mulligan, "Taking the 'Long View' on the Fourth Amendment: Stored Records and the Sanctity of the Home," 2008 Stanford Tech. L. Rev. 3, ¶18 (2008). The Court also protected home privacy by prohibiting the monitoring of the location of a beeper while inside a residence. In United States v. Karo,''468 U.S. 705 (1984) (full-text). with the consent of a government informant the police attached a beeper to the false bottom of a can of ether, which was sold to Karo. The can of ether was transported between several residences and storage facilities. The police used the beeper to monitor the location of the can several times while it was located inside of the residences. The Court was asked to determine "whether the monitoring of a beeper in a private residence, a location not open to visual surveillance, violates Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence."''Id. at 709-10. The Court answered in the affirmative. The Court reiterated the long-standing notion that "private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable."Id. at 714. Unless there are exigent circumstances, "searches and seizures inside a home without a warrant are presumptively unreasonable. . . ."Id. at 714-15. The Court ultimately held that the warrantless monitoring of the beeper in the home was a Fourth Amendment violation.Id. at 718. Kyllo and Karo demonstrate that the Supreme Court "has defended the home as a sacred site at the 'core of the Fourth Amendment.'"Stephanie M. Stern, "The Inviolate Home: Housing Exceptionalism in the Fourth Amendment," 95 Cornell L. Rev. 905, 913 (2010) (citing Wilson v. Layne, 526 U.S. 603, 612 (1999) (full-text)). Although neither the Supreme Court nor any lower federal court has ruled on the use of smart meters, a few propositions can be deduced from Kyllo and Karo bearing on this question. Because smart meters allow law enforcement to access information regarding intimate details occurring inside the home, a highly invasive investigation that could not otherwise be performed without intrusion into the home, a court may require a warrant to access this data. In Kyllo, the police merely obtained the relative temperatures of a house,Kyllo v. United States, 533 U.S. 27, 30 (2001) (full-text). and in Karo the police only generally located the beeper in the house.Karo, 468 U.S. at 705, 709-10. Although this information was limited, the Court nonetheless prohibited such investigatory techniques. Smart meters have the potential to produce significantly more information than that derived in Kyllo and Karo, including what individual appliances we are using; whether our house is empty or occupied; and when we take our daily shower or bath.Guidelines for Smart Grid Cyber Security, Vol. 2, at 14 & n.35. It is unclear whether the specificity of the data from the smart meter will directly affect the constitutional analysis. Kyllo, 533 U.S. at 37 ("The Fourth Amendment's protection of the home has never been tied to measurement of the quality or quantity of information obtained."). With that said, the NIST report maintains that sufficient information about the activities inside of the home are presented to implicate a Kyllo home search analysis. Further, this level of information is much more intimate than prior technologies used by law enforcement. This depth of intrusion suggests that customers may have a reasonable expectation of privacy in smart meter data. There is also a question whether smart meters are in "general public use." (The police must use technology not in general public use for Kyllo to apply.)Kyllo, 533 U.S. at 34. Unfortunately, the Court provided no criterion for making this determination.See Douglas Adkins, "The Supreme Court Announces a Fourth Amendment 'General Public Use' Standard for Emerging Technologies but Fails to Define It: Kyllo v. United States," 27 Dayton L. Rev. 245 (2002). Several courts applying this test have held that night vision goggles were in general public use.See United States v. Dellas, 355 F.Supp.2d 1095, 1107 (N.D. Cal. 2005) (full-text). One federal district court reasoned that the goggles were regularly used by the military and police and could be found on the Internet, so were considered in general public use.United States v. Vela, 486 F.Supp.2d 587, 590 (W.D. Tex. 2005) (full-text). In 2009, the Department of Energy estimated that 4.75% of all electric meters were smart meters. The department projects that by 2012 approximately 52 million more meters will be installed.Id. With little guidance on this issue, it is uncertain whether this jump in numbers would elevate smart meters into the general public use category. The means by which data is gathered also differentiates the thermal-imaging in Kyllo from smart meters. In Kyllo, the police independently gathered the information using the thermal imager; an agent went outside Kyllo’s house and used the thermal imager himself.Kyllo v. United States, 533 U.S. 27, 29 (2001) (full-text). With smart meters, the utility company compiles the information and the police subpoena the company for the data. This difference in means was material in one lower court analyzing access to traditional utility data.United States v. McIntyre, 646 F.3d 1107, 1111-12 (8th Cir. 2011) (full-text). It is not clear whether this difference advises against application of Kyllo here. References Source * Smart Meter Data: Privacy and Cybersecurity, at 7-22. Category:Smart grid Category:Fourth Amendment Category:Privacy